“Investigation” of Banks’ Usage of H-1B Visas Gets It Wrong

WASHINGTON, DC -- The Associated Press continues to run poorly researched pieces on H-1B visas and the Banks receiving "bailout" money from the Federal Government. The articles leave the false impression that as the Banks were taking bailout money, they were simultaneously firing U.S. workers and hiring "cheap" foreign labor. The AP articles are based on faulty interpretations of publicly available data, and totally ignore the strong labor market protections required to bring H-1B professionals to the U.S.

The faulty and inflammatory AP articles are now being used by Senators Sanders and Grassley to push an amendment onto the pending economic stimulus bill that would bar banks and other financial institutions that accept funding under the "TARP" legislation from hiring a single foreign professional under the H-1B program.

Let's set the record straight. The AP article refers to the number of "labor condition applications" (LCAs) filed by certain banks over the past 5 years. The LCA applications are a precursor to an actual petition for an H-1B worker. Multiple LCAs are usually filed for each employee due to heavy regulatory requirements, such as the need to file LCAs for different geographic locations to comply with wage rules, and many LCAs never turn into actual petitions. The reporters neglected to understand, or to examine, the actual petitions for H-1B professionals that were granted under the program in any given fiscal year. Had they looked at the available data, they would have found figures that undercut their allegations.

It is not possible to get a clear idea of numbers of H-1B visas by looking at LCAs. One must look at petitions filed with the U.S. Citizenship and Immigration Services, which is what the National Foundation for American Policy (NFAP) did. In fact, according to the NFAP, the largest financial institution in the country, in terms of employees, actually received a grand total of 155 approved petitions for new H-1B professionals in 2007, out of a total workforce of 387,000! Bank of America received approved petitions for 66 new H-1B professionals in a total workforce of 210,000. In another recent study, the NFAP found that for every H-1B professional hired, a company will increase its overall workforce by 5 workers.

Existing law carefully protects wages by requiring that companies pay the higher of the wage paid by their competitors for comparable positions or the wage the company itself pays to other comparable workers. These protections are enforced by the Department of Labor and non-compliance includes heavy penalties, including complete bars from petitioning for any foreign worker. To further show the current strength of the H-1B program, the monies used to enforce these law comes from the H-1B employers, who pay government fees of $2,320 each time they file an H-1B, including $500 earmarked specifically for enforcement of the law!

Today's New York Times includes a business section article that points out how foreign companies with U.S. subsidiaries and U.S. companies with international operations are absolutely critical to the stimulus plan working. A senior manager of Sanyo's solar division says that America is positive about solar energy, "but it doesn't have enough production capacity to cover its demand." These are the very companies that need to be able to target talent in the international market to make their U.S. operations grow and prosper.

U.S. economic recovery and growth depends on the U.S. remaining competitive in a globalized economy with a globalized work force. These are the facts that Congress needs to consider as it crafts new legislation. What is needed is a proper, well-documented study on H-1B visa numbers and usage, and an agreement on the appropriate amount of H-1B visas needed to meet real and legitimate need, in the context of employment rate rise or fall. Legislation based on faulty and inflammatory allegations will only cripple our economy, undermine our nation's global competitiveness, and demagogue an issue rather than deal with real solutions that serve the national interest.

Come on, AP and Congress-Look at the REAL facts before you jump off the cliff of protectionism. Immigration is part of the answer, not the problem.

###

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.